Getty Makes Nonsensical Statement On Photographer Carol Highsmith's Lawsuit For Falsely Claiming Copyright

from the say-what-now? dept

As you may recall, we just recently wrote about photographer Carol Highsmith's copyright lawsuit against Getty Images, for falsely claiming copyright in her images (and demanding she pay to use her own images...) which she had purposely donated to the Library of Congress to make them available for the public to use, royalty-free. A PR person from Getty has reached out to us and pointed us to Getty's completely nonsensical "statement" on the lawsuit (and, actually, the email pointed us to the wrong URL, but we found it anyway).
We are reviewing the complaint. We believe it is based on a number of misconceptions, which we hope to rectify with the plaintiff as soon as possible. If that is not possible, we will defend ourselves vigorously.

The content in question has been part of the public domain for many years. It is standard practice for image libraries to distribute and provide access to public domain content, and it is important to note that distributing and providing access to public domain content is different to asserting copyright ownership of it.

LCS works on behalf of content creators and distributors to protect them against the unauthorized use of their work. In this instance, LCS pursued an infringement on behalf of its customer, Alamy. Any enquiries regarding that matter should be directed to Alamy; however, as soon as the plaintiff contacted LCS, LCS acted swiftly to cease its pursuit with respect to the image provided by Alamy and notified Alamy it would not pursue this content.
First of all, huh? "The content in question has been part of the public domain for many years"? Actually, it has not. As Highsmith noted, she retained the copyright to her images, but rather did a deal with the Library of Congress to make the works available royalty free. It was basically a Creative Commons attribution license before Creative Commons existed. She still retains the copyright. So the images are not public domain.

And, uh, even if they were, what a weird claim for Getty to make, because it was a Getty subsidiary that then threatened Highsmith for posting her own images. If Getty now claims it believes the images were in the public domain, why was it shaking her down for money? This makes no sense at all.

Finally, trying to pawn blame off on Alamy is ridiculous. Alamy is a co-defendant in the lawsuit, but LCS and Piscount are both subsidiaries of Getty, and both sent Highsmith letters demanding payment. It's almost as if Getty's PR people have absolutely no clue what they're talking about.

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  • icon
    That One Guy (profile), 1 Aug 2016 @ 7:57am

    Just can't make this stuff up

    LCS works on behalf of content creators and distributors to protect them against the unauthorized use of their work.

    Can't help but absolutely love this line, given the context it's being made in. They attempted to shake down the person who took the photos, the 'content creator', by claiming to own the rights to the photos. That's some Class A protection of content creators there, that's for sure

    It is standard practice for image libraries to distribute and provide access to public domain content, and it is important to note that distributing and providing access to public domain content is different to asserting copyright ownership of it.

    "I didn't throw a bucket of water on that person, I used a metallic container to apply a liquid to the surface of their skin!""

    If you're threatening someone and demanding they pay up for using something then for all intents and purposes you are claiming ownership over it, as you're asserting that you own the rights to it, and use of it requires payment to you.

    An argument like the one they are making would only even begin to make sense if there was only one repository of the content in question, them, which would rather render moot the public domain status so long as that held true. In that case public domain or not they'd be in a position to charge for access(though whether or not they'd have grounds to assert ownership of any copies would be up for debate I'd think), despite not actually owning the exclusive rights to the works in question.

    This however was not the case here, it was entirely possible to gain access to the pictures in a way that had nothing to do with them, meaning they were 'mistakenly' asserting a falsehood at best by claiming that the photographer, or anyone needed to pay to post the pictures in question.

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    • identicon
      Anonymous Coward, 1 Aug 2016 @ 12:14pm

      Re: Just can't make this stuff up

      I can charge you money for works that are in the public domain.

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      • icon
        That One Guy (profile), 1 Aug 2016 @ 12:34pm

        Re: Re: Just can't make this stuff up

        Public domain means anyone can use them however they like, up to and including selling them, so sure. What you can't do is try to claim ownership rights over it, demanding payment for it's use, as that would rather defeat the purpose of the public domain.

        You can insist that your particular version, only obtainable through you requires payment, but you can't lay claim to the underlying work and demand payment for any general use, as seems to have been the case here.

        Hypothetical example time:

        Shakespeare is in the public domain. I create a collection of his plays, put them into book format with some commentary, maybe a spiffy cover, and offer it for sale. I have the copyright on the commentary and potentially the binding(assuming new illustration rather than one from the time-period), so if someone just copies the whole thing, commentary and all I can go after them for that. I cannot however do anything whatsoever to stop anyone else from putting together their own book with Shakespeare plays in them, as I utterly lack any exclusive rights to that part of the book, the public domain part.

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      • identicon
        Anonymous Coward, 1 Aug 2016 @ 1:00pm

        Re: Re: Just can't make this stuff up

        Yes you can charge for supplying copies of public domain works. What you cannot do is demand money for the use of public domain works, especialy you did not provide the copies, which is what they were doing here.

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      • identicon
        David, 1 Aug 2016 @ 2:12pm

        Re: Re: Just can't make this stuff up

        Of course you can. What you cannot do is send me cease-and-desist letters for distributing works in the public domain regardless of how I attained a copy.

        Even if I broke into your servers to get them. You can get me in jail for breaking into your servers. But not for distributing material in the public domain.

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    • identicon
      Brian Thomas, 2 Aug 2016 @ 2:06pm

      Re: Just can't make this stuff up

      Content creators AND Distributors.

      In this case it was the distributor. It's terrible that they sent a letter to her organization, someone wasn't using their brain.

      I have sold public domain images via Alamy in the past. When I upload the image, I never claim copyright ownership of it. When an image of mine is sold i.e. a NASA image I uploaded, I have it where the credit line says NASA IMAGES. Others have it say NASA LIBRARY etc.

      There is a copyright symbol before that name which isn't exactly how it should read since NASA doesn't own the copyright because they are a government agency.

      When I distribute such pictures on my own stock photo site, I have no copyright notice, just a line that reads Credit: NASA / Stock photo site name

      I think it's totally wrong for Getty or Alamy to go after users of public domain images that can be found at the Library of Congress.

      However, if it is an image that is found/ was found/ on Alamy which was fixed up i.e. dust spots from Carol Highsmith's photos may have been removed etc. (her photos have many dust spots as I've seen many in blue her blue skies), that type of photo used by someone could be proven to have been taken off the alamy site without the payment of a license. For that, I think a letter might suffice.

      However, if the images cannot be proven to be taken from the Alamy site after some change made in the photo itself, no letter should be sent to the users of the photos.

      But licensing public domain photos is not illegal. And the usage of PD photos is almost always editorial and not commercial and never Royalty Free.

      Just my thoughts.

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  • icon
    That Anonymous Coward (profile), 1 Aug 2016 @ 8:37am

    Gee, one might think they are a copyright troll.

    Invent "different" companies to execute the shakedown, funneling the cash back to the parent company.
    If anything goes wrong, sacrifice those "different" companies... since they are hollow shells with no assets left no harm comes to the mothership.

    They spend so much time screaming how people are stealing from them, yet think nothing of stealing from the public. They took something that did not belong to them and worse than most 'pirates' actively made money off of them. Commercial copyright violations, copyfraud, and an extortion scheme... yet I bet there will be no one championing the public in this by fixing the laws.

    I do hope the case goes forward, given the number of photos they stole from the public from this one photographer it would be wrong to not vette all of the photos they claim ownership over. Willing to bet she isn't the only photographer who's work they illegally profited from, she was just the one they were stupid enough to go after.

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    • identicon
      Anonymous Coward, 1 Aug 2016 @ 8:47am

      Re:

      --I do hope the case goes forward

      I do too, I hope it goes all the way, no settlements!

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    • identicon
      mcinsand, 1 Aug 2016 @ 8:47am

      the shoe certainly fits!

      A company is taking legal action to collect money for copyrights that said company doesn't control... if it looks, smells, and acts like a copyright troll, then there's not much math left to do.

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    • identicon
      Anonymous Coward, 1 Aug 2016 @ 8:56am

      Re:

      excellent point about this probably being the tip of the iceberg, if you are someone who only has one or a few pix they have hijacked, you might never know...
      in fact, THIS photog only found out because of their egregious legal action against her ! ! !
      getty r slime...

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    • icon
      Jeremy Lyman (profile), 1 Aug 2016 @ 9:59am

      Re:

      Yup, I want Getty, Et Al in court on record saying "Whoa... you guys... these copyright infringement penalties are way out of control. How the hell can we be on the hook for that much?"

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      • icon
        That Anonymous Coward (profile), 1 Aug 2016 @ 10:56am

        Re: Re:

        As they were busted previously for similarly scummy behavior, I'm sure they are regretting adding that whole treble damages portion.

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    • identicon
      Anonymous Coward, 1 Aug 2016 @ 10:05am

      Re:

      They are worse that a copyright troll, as they are claiming that they can license use of photographs inside other peoples works, when they do not have control over the copyright licensing for the work. If they have done so for these works, what other works have they made fraudulent claims of being able to issue a license for, and when will a licensee be sued for copyright infringement over a work they thought they had a valid license to.

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  • icon
    DannyB (profile), 1 Aug 2016 @ 8:42am

    Artists need to get paid

    From TFA . . .
    > LCS and Piscount are both subsidiaries of Getty, and both sent
    > Highsmith letters demanding payment. It's almost as if Getty's
    > PR people have absolutely no clue what they're talking about.


    If Highsmith had sent a payment to Getty would she have received:
    1. all of that payment back
    2. a portion of that payment back
    3. none of that payment back

    Or asked a different way. When Getty charges for a public domain work, and they know it is public domain, do they keep all of the payment for themselves?

    What if it is NOT a public domain work, but is available royalty free? Can Getty charge a large fee for it, but keep all of that fee, claiming it is not a royalty, but merely a 'service' fee for providing access to the royalty free copyrighted work?

    Can Getty's system even keep track of whether a work is covered by copyright, and whether a copyright work is royalty free? If so, would it be advantageous for Getty to make those images available for free as a convenience to their users. Or is CwF+RtB too radical and idea, or perhaps simply inconceivable.

    And as a final question, why would anyone expect PR people to have any clue about what they are talking about? Doesn't such an expectation seem prima facie unreasonable?

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    • identicon
      Anonymous Coward, 1 Aug 2016 @ 9:37am

      Re: Artists need to get paid

      --What if it is NOT a public domain work, but is available royalty free? Can Getty charge a large fee for it, but keep all of that fee, claiming it is not a royalty, but merely a 'service' fee for providing access to the royalty free copyrighted work?

      The images discussed here required that attribution was given for them to be royalty free. Getty was not meeting the terms of the license thus did not have a license to do anything with these images.

      Unless it was against the terms of the license I'd see no problem charging a 'service' fee provided you meet the terms of the license that allows you to distribute the images in the first place.

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      • icon
        DannyB (profile), 1 Aug 2016 @ 11:04am

        Re: Re: Artists need to get paid

        Good point.

        Can Getty's system keep track of what various requirements there are for images which are royalty free, as long as certain conditions are met?

        The customer getting the images from Getty would need to be made aware of these conditions as a pre-condition to paying for the images.

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      • identicon
        Brian, 2 Aug 2016 @ 2:13pm

        Re: Re: Artists need to get paid

        I just looked at the library of congress page and see no need to attribute that Highsmith's photos are to be RF.

        In fact, no image can be RF if there is a person or property that doesn't have a signed release.

        Also, anything with a trademark cannot be RF.

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    • icon
      nerd bert (profile), 2 Aug 2016 @ 7:03am

      Re: Artists need to get paid

      It's almost as if Getty's PR people have absolutely no clue what they're talking about.

      Actually, PR people are paid not to have a clue what they're talking about. If they knew what they were talking about they couldn't properly parrot what their corporate masters wish to broadcast.

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  • icon
    Violynne (profile), 1 Aug 2016 @ 8:45am

    Look at the bright side, Mike.

    If this case does go to trial, Getty images just put their own foot in their mouth by admitting they believed the images to be in the public domain and were charging people for it.

    There's no way to excuse this now.

    Hopefully, the lawsuit is so damaging, Getty becomes a footnote in the annals of internet history.

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    • identicon
      sky pirate, 1 Aug 2016 @ 11:08am

      Re: wack-a-mole

      Watch out. You squash one of these pirate outfits, and a dozen more pop up to take their place.

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    • icon
      Bergman (profile), 1 Aug 2016 @ 1:19pm

      Re:

      Nothing stops a company from charging for public domain works, that's perfectly legal.

      Where Getty ran into legal trouble was trying to threaten people for using works that were NOT in the public domain that Getty didn't own the rights to without paying Getty.

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      • identicon
        Anonymous Coward, 1 Aug 2016 @ 2:48pm

        Re: Re:

        Threatening people for using works that ARE in the public domain could get them in trouble too, just not for this particular case.

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  • icon
    orbitalinsertion (profile), 1 Aug 2016 @ 8:47am

    It's almost as if Getty's PR people have absolutely no clue what they're talking about.


    That's the method of operation. It's been more popular than ever (anecdotal observation) the last 20 years or so. Somehow it works often enough that the practice of (including but not limited to)repeating, insisting, making no sense, making claims contrary to established facts (even those backed by quantitative evidence), and self-contradiction is a thing. Just speak with authority.

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  • icon
    pazuzzu (profile), 1 Aug 2016 @ 8:48am

    I bet more than one of the execs at Getty said something like, "well....shit"

    they know there's merit to the claim so they're vomiting up disinformation/misinformation. propaganda 101: if you're accused of attacking someone then just state you're actually defending them from being attacked, by you. or something?

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  • identicon
    Anonymous Coward, 1 Aug 2016 @ 8:51am

    Getty is no better than those fraudulent people who send fake, unsolicited invoices to random companies, hoping that some of them will just assume they're valid and pay them.

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  • identicon
    Anonymous Coward, 1 Aug 2016 @ 8:58am

    Getty has obviously been taking lessons from MPAA and RIAA. they are both keen to claim copyright on stuff that isn't theirs, charging money they shouldn't charge and issuing lawsuits whenever possible. let's hope she takes the case to court and screws Getty and the subsidiaries good and proper!!

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    • identicon
      Anonymous Coward, 1 Aug 2016 @ 9:30am

      Re:

      And...after the verdict is read and she is on her way out of the courtroom with a big win, she should start singing the "Happy Birthday" song.

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  • identicon
    Anonymous Coward, 1 Aug 2016 @ 9:16am

    The PR department went to the Donald Trump school of logic, clearly.

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  • identicon
    Anonymous Coward, 1 Aug 2016 @ 9:45am

    This is an anomaly (that the copyright brigade will insist on calling it in defence of Getty) that may cost Getty loads of money.

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    • icon
      That One Guy (profile), 1 Aug 2016 @ 10:00am

      Re:

      Yeah, purely a coincidence I'm sure, but the 'Copyright is the Best Thing Ever' lot seem to be rather silent on this matter so far, though if they are crazy enough to show up I fully expect them to do as you say and defend Getty, because while copyright violations on an individual basis are terrible acts enough to destroy economies, large-scale commercial copyfraud is absolutely acceptable when a big company does it.

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  • identicon
    Anonymous Coward, 1 Aug 2016 @ 10:10am

    All your image are belong to us

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  • identicon
    Anonymous Coward, 1 Aug 2016 @ 10:32am

    Welcome to the 21st Century

    "Getty's completely nonsensical 'statement'..."

    You're just thinking like an old guy, Mike. These days, evil organizations like Getty pull out "The BIG Lie" first and for everything.

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  • identicon
    Pixelation, 1 Aug 2016 @ 10:40am

    "First of all, huh? "The content in question has been part of the public domain for many years"? Actually, it has not."

    Who do they think they are, lying like that? Trump?

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    • identicon
      Anonymous Coward, 1 Aug 2016 @ 1:07pm

      Re:

      No, they think that they're Hillary - This is a BIG lie not just a small one.

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    • identicon
      Brian, 2 Aug 2016 @ 2:19pm

      Since 1992 isn't "many years"

      FROM THE LIBRARY OF CONGRESS WEBSITE:

      Highsmith, a distinguished and richly-published American photographer, has donated her work to the Library of Congress since 1992. Starting in 2002, Highsmith provided scans or photographs she shot digitally with new donations to allow rapid online access throughout the world. Her generosity in dedicating the rights to the American people for copyright free access also makes this Archive a very special visual resource.

      These are "copyright free" not "royalty free"

      There have never been any limitations on the use of these photos since they were put into the public domain. Anyone could license them if they wanted to do so. You could use them in any way except for commercial use. Commercial meaning endorsing a product, not simply selling a license to use them.

      But these images have been in the public domain for 25 years.

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  • identicon
    Anonymous Coward, 1 Aug 2016 @ 10:42am

    This is one time where I have to side with Carol Highsmith. The problem is Getty. Alarmy and ALS were workign as agents of Getty and they royally screwed this up by demanding that the owner of the image to which she allowed to be available in the public domain tried to shake down the very person who owns the image.

    The lawsuit she filed was in response to Getty, Alarmy and ALS trying to shake down Carol Highsmith. While I don't agree with the amount she's trying to sue for, Getty should be ashamed of themselves for putting this on Alarmy and ALS. They were acting as agents for Getty and Getty should have been aware of what was going on.

    I'm guessing that Getty was very well aware of what was going on and that they are now trying to backpedla of this this PR disaster that they created.

    This is like Warner Brothers suing Phil Collins for singing his own music at a concert. It's ridiculous that Getty allowed such a thing as this to happen. Getty saying they wouldn'
    t follow through with the $120 licensing fee is ridiculous on its face because it should never have come to that in the first place.

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    • icon
      Bergman (profile), 1 Aug 2016 @ 1:40pm

      Re:

      The term 'public domain' has a specific meaning, and those images are not (and never were) in the public domain.

      The amount she is suing for is no more and no less than the amount specified by the statute she is suing under. If you have a problem with the dollar amounts, blame the people who lobbied for those laws (hint: Getty is one of the companies behind those lobbyists).

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    • identicon
      L. D., 1 Aug 2016 @ 10:59pm

      Re:

      > While I don't agree with the amount she's trying to sue for

      Me neither, she should've asked for 5 billion.

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    • icon
      PaulT (profile), 1 Aug 2016 @ 11:47pm

      Re:

      "the image to which she allowed to be available in the public domain"

      She didn't do that. It's strange that Getty are making the argument that she did, as that would make the action they took even worse and less defensible. But, the images were not public domain.

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      • identicon
        Brian, 2 Aug 2016 @ 2:40pm

        RIGHTS AND RESTRICTIONS PAGE AT LIBRARY OF CONGRESS

        Publication and other forms of distribution: Ms. Highsmith has stipulated that her photographs are in the public domain.

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        • identicon
          Anon, 5 Aug 2016 @ 11:26am

          Re: RIGHTS AND RESTRICTIONS PAGE AT LIBRARY OF CONGRESS

          Disclaimer: IANAL, nor am I remotely an expert on American Copyright law.

          That said, I'm sure it has been stated here many times, under US Copyright law it is impossible (for anyone) to stipulate that an object is under Public Domain unless the copyright has expired. Ccopyright is immutable which is one of the reasons why Creative Commons came about.

          Am I wrong?

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          • icon
            Anarres (profile), 5 Aug 2016 @ 2:08pm

            Re: Re: RIGHTS AND RESTRICTIONS PAGE AT LIBRARY OF CONGRESS

            Yes, it's wrong. Courts have said that it is the prerogative of the copyright holder to renounce their rights, by making a very clear statement to that effect.

            Part of the reason for the strange doubt that it's "possible" is that after Berne implementation act (1989) there hasn't been, to my knowledge, a case litigated successfully, that decided that x language is clear enough. So maybe the problem, if there is a real problem, is that we don't know what language exactly will convince a court today.

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  • identicon
    Anonymous Coward, 1 Aug 2016 @ 11:44am

    It IS in the public domain

    "First of all, huh? "The content in question has been part of the public domain for many years"? Actually, it has not. "

    Actually, it is. Here's the word from the Library of Congress:
    https://www.loc.gov/rr/print/res/482_high.html

    And here's the language used in the Instrument of Gift:
    "I hereby dedicate to the public all rights, including copyrights throughout the world, that I possess in the collection"

    I can't see how a copyright infringement case can move beyond the first attempt to dismiss it if Ms. Highsmith is not the copyright holder of the work.

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    • icon
      DocGerbil100 (profile), 1 Aug 2016 @ 1:33pm

      Re: It IS in the public domain

      This needs to be examined. It looks like Ms Highsmith is saying one thing and the LoC is saying another.

      If Ms Highsmith did commit her works to the public domain, then she may not have standing to sue over copyright, as such.

      If Ms Highsmith did not, in fact, commit her works to PD, then I suspect the LoC needs to be added as a joint defendant, since they appear to be claiming she did.

      Getty is not off the hook, either way: their demands for money for images they don't own is a clear, fraudulent assertion of ownership, regardless of any tricky word-games they might play to give themselves plausible deniability.

      As far as Ms Highsmith is concerned, she's - at bare minimum - a victim of attempted fraud and undoubtedly entitled to sue on that basis.

      As far as the FBI is concerned, Getty is engaged in systematic, wholesale criminal fraud, certainly on a nationwide basis and possibly worldwide. Whether they've an appetite to prosecute or not, there are Getty executives who need to go to jail for this.

      I won't miss them.

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      • icon
        Anarres (profile), 2 Aug 2016 @ 7:01am

        Re: Re: It IS in the public domain

        I just saw this, after I commented. Yes it will need examined.

        One note: LoC should be added as joint plaintiff, not defendant. Because this document isn't what LoC is claiming, is what Carol signed, and the court might decide that LoC holds the copyright in question.

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    • identicon
      Brian, 2 Aug 2016 @ 2:21pm

      Re: It IS in the public domain

      Thank you for pointing this out.

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    • identicon
      Beez, 3 Aug 2016 @ 1:46am

      Re: It IS in the public domain

      She is not suing for copyright infringement. She is suing for violation of 17 USC 1202.

      She may have trouble with her DMCA claims too if the work has been put into the public domain but let's get her complaint correct.

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  • identicon
    Anonymous Coward, 1 Aug 2016 @ 11:47am

    Hmm...

    Getty.com is up for sale.

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  • identicon
    Anonymous Coward, 1 Aug 2016 @ 11:53am

    So how DO you find the copyright status of a Gettyimages image?

    That is, if you choose a random image from them, how do you find a) who really holds the copyright, b) what is the date of that copyright (if any)?

    Do you have to rely on Gettyimages? It would seem they'd have every reason in the world to bluff, bluster, and lie. ... until they get caught, that is.

    Is your only other proactive avenue to do a worldwide search of your own? (Or rely on Google image search?)

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    • icon
      PaulT (profile), 1 Aug 2016 @ 11:54pm

      Re:

      How do you find the true status of any media or product?

      You don't know if the store you just bought your TV from was dealing with stolen, grey import or counterfeit products, you generally have to take their word for it. Sure, it's going to be less likely that the Wal Mart TV you just saw is going to be stolen than one from a dodgy back street market, but you have to trust Wal Mart's supply chain for that to hold true.

      Same thing here, you really have no way of knowing exactly how Getty obtained the original images, but you trust that they are more reputable than doing a random search. If their reputation becomes suspect, choose another repository with a better reputation.

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  • identicon
    Quiet Lurcker, 1 Aug 2016 @ 12:55pm

    AC -

    Re the damages Getty should have to pay, I'd say the demanded sum is low by several orders of magnitude. Getty knew what they were up to, yet did it time after time and time again. Who can say how many people took it in the shorts over their "deal"?

    No. That company needs to be driven to liquidation and eventually out of business for a stunt like this.

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    • identicon
      John Barron, 3 Aug 2016 @ 1:50am

      Re:

      Despite what they tell you on Fox News (oxymoron) Judges don't get to make up the law (except for the Supreme Court) so the Judge can't invent her own damage remedy. Let's see if Highsmith can even move her case along before we try to put Getty out of business.

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  • identicon
    dr evil, 1 Aug 2016 @ 1:11pm

    please note

    these pictures are not public domain, they are royalty free. Getty does not have the copyright, simple.

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    • identicon
      Brian, 2 Aug 2016 @ 2:26pm

      Re: please note

      Below is from the Library of Congress. There are no restrictions on the use of her images other than normal restrictions limiting the use of her or any public domain images from being used to advertise or endorse a product. Also since these are public domain images with property or people in them, they cannot and never will be able to be used royalty free. You'll see from the notice below, her images are copyright free, meaning no copyright i.e. Public Domain.

      FROM THE LIBRARY OF CONGRESS (regarding her collection):

      Highsmith, a distinguished and richly-published American photographer, has donated her work to the Library of Congress since 1992. Starting in 2002, Highsmith provided scans or photographs she shot digitally with new donations to allow rapid online access throughout the world. Her generosity in dedicating the rights to the American people for copyright free access also makes this Archive a very special visual resource.

      reply to this | link to this | view in chronology ]

  • identicon
    Zem, 1 Aug 2016 @ 5:03pm

    We need to sick PETA onto Getty. They are clearly using a room full of monkeys on type writers.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Aug 2016 @ 5:30pm

    Silly Mike

    > It's almost as if Getty's PR people have absolutely no clue what they're talking about.

    The simplest explanation for this missive is that they fully know what they're doing, but are hoping to bamboozle you because they know they don't have a leg to stand on. It didn't work, but they're hardly any further behind, are they?

    When it comes to copyright in the land of the (someone must own it so it can't be) free, the old saw should be "Never attribute to incompetence what can be adequately explained by greedy, self serving, maliciousness."

    reply to this | link to this | view in chronology ]

  • identicon
    sara, 1 Aug 2016 @ 11:46pm

    To prevent these, I suggest people to use Copyrobo app to protect their works, they will have legal evidence to claim their copyrights. It is safe and effortless: copyrobo.com

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 2 Aug 2016 @ 5:53am

    What about everything else?

    I don't know if this has been brought up yet, but what about everything else on the Getty website? After all, if they can do this to her, is it standard practice there and how many other people have they do it to? Should customers be wary about buying anything since there's no real way of knowing if the image is in the public domain or if Getty is even the correct license-holder.
    I think this case needs to create a new class-action lawsuit over any other images that may also be in the public domain which Getty is improperly licensing.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Aug 2016 @ 6:11am

    So they want to charge for the valuable search infrastructure they provide, how does that excuse sending a licensing demand to someone who obviously found the image on their own?

    reply to this | link to this | view in chronology ]

    • icon
      Eponymous Coward (profile), 2 Aug 2016 @ 7:42am

      Re:

      It absolutely doesn't, especially when, in this case, you can delete 'found' from your question and replace it with 'uploaded original image file to which she owns the rights'.

      Something tells me that Getty, unlike government agencies, can't just run a search query on the contents of random people's hard drives.

      reply to this | link to this | view in chronology ]

    • identicon
      Gentle Gus, 3 Aug 2016 @ 1:48am

      Re:

      The copyright law provides almost no remedies for fraudulently asserting copyright. If you don't like it vote for Hillary ! Seriously, if you don't like it call your congress person. Also, Vote for Hillary !

      reply to this | link to this | view in chronology ]

  • icon
    Anarres (profile), 2 Aug 2016 @ 6:51am

    I'm surprised that the second article on Techdirt on this lawsuit still doesn't address the actual terms of Carol Highsmith's gift:
    https://www.documentcloud.org/documents/2999595-Gov-Uscourts-Nysd-460787-1-2.html

    If you take a look, you will understand why unfortunately, a judge will have to interpret this contract, and the result isn't open and shut.
    The interpretation might be: 1) Carol kept copyright and gave a license to LoC and the public; 2) Carol granted all copyright to LoC in exchange for it making it available for free to the public; or, 3) Carol relinquished copyright and the work is the public domain.

    On the bright side, Carol is suing under DMCA 1203, which says "anyone harmed can sue", she's not suing as copyright owner. So she has standing, in all 3 options.

    But it will be difficult to prove the causes of action if the court will decide option 3.

    reply to this | link to this | view in chronology ]

    • identicon
      Buttons, 3 Aug 2016 @ 1:39am

      Re:

      Her DMCA claims require violation of her 1202 rights "with intent to facilitate infringement." So if the court decides number 3 (public domain) she will have a problem with her DMCA claims because there is no potential infringement.

      If her case gets tossed, maybe she could refile with some state law fraud claim. Of course, it won't be 18,000+ photos just the one they tried to license to her. Maybe she could get $100. ;-)

      reply to this | link to this | view in chronology ]

    • icon
      Todz (profile), 4 Aug 2016 @ 2:09pm

      Re:

      I'm no expert in copyright law, but I think your option 3 may well prove not to be relevant.

      Highsmith gave ownership of the physical transparencies etc to the LoC.(the use of the word “title” makes that clear), under terms that are specified which includes the right of access/copy by the public, but on terms set and determined by the library.

      Highsmith also said that she dedicates "all rights, including copyrights" to the public. That has to be read as being that she has extended her copyright to the public but has NOT removed or deprived herself of any rights she has as the copyright owner.

      Getty et al could say that they hold the copyright as they are part of “the public”. But as everyone else in the US is also the public then they’d have difficulty in asking for payment of a licence fee to use the image and mentioning copyright law – and that’s exactly what they did.

      The Judge will go for option 1 as it makes more sense.

      reply to this | link to this | view in chronology ]

  • icon
    countryboy (profile), 2 Aug 2016 @ 7:02am

    Public Doman

    One issue i have not seen addressed here: Getty and Alamy are addressed (equally?), but I don't see the connection between the two in this case, or in any case. Is it claimed that Getty was sub-licensing these images via Alamy, or vice-versa? I am a contributor to both of them and have learned from one that it is quite possible to 'donate' your images to the Library of Congress while still retaining the copyright. I was given several examples of prominent photographers whose estates had donated the images, prints, and negatives (permitting the LOC to distribute those images) while still retaining the right to license them.

    reply to this | link to this | view in chronology ]

    • icon
      Eponymous Coward (profile), 2 Aug 2016 @ 7:44am

      Re: Public Doman

      reply to this | link to this | view in chronology ]

      • icon
        Eponymous Coward (profile), 2 Aug 2016 @ 7:46am

        Re: Re: Public Doman

        Salient bit from the earlier article:
        "The lawsuit also goes after a smaller Getty competitor, Alamy, that is doing the same thing, and some Getty subsidiaries, LCS and Piscount, who, again, are doing the same thing (in fact, the threat letters Highsmith received were from Piscount and LCS). To make matters even more confusing, even though Alamy is a Getty competitor, it uses a Getty subsidiary, LCS, to send out threat letters demanding cash."

        reply to this | link to this | view in chronology ]

    • icon
      Anarres (profile), 2 Aug 2016 @ 8:24am

      Re: Public Doman

      Both Getty and Alamy put their own copyright over the photos, and LCS shook down people for money for "infringement".

      LCS is Getty. It appears to be a name under which Getty operated for a while, without any other incorporation than Getty. I believe it was a department within Getty, or so it looks like, in 2015.

      It appears that in March 2016, LCS was incorporated. It might have been Getty's intention all along to incorporate LCS as a new company, but it did that only recently, and some internet commentators noticed that 3/4 owners of LCS are Getty's too, even after incorporation.

      reply to this | link to this | view in chronology ]

  • identicon
    Incredulous (profile), 2 Aug 2016 @ 8:58am

    2 plus 2

    Obviously Getty is attempting to shore up some damage control and shift liability to the subsidaries that are shielded from the claim of the damages sought for a pay out, at what, $175,000 per 18,755 photographs? Does that add up to One Billion? You better do the math, Getty!

    reply to this | link to this | view in chronology ]

  • identicon
    Brian Thomas, 2 Aug 2016 @ 1:54pm

    RF Images

    From what I understand about photography, no images can be used royalty free if they have any people in them (unless model released) and no images can be used royalty free if there is any property or copyrighted symbols, trademarks etc in the images.

    Any image of Carol Highsmith's that is not a landscape cannot be used royalty free.

    Also, the Library of Congress puts limitations on images in their "rights and restrictions" page if the creator of a work has limited their usage i.e. the images cannot be used commercially, or cannot be published in magazines or newspapers, etc.

    Carol Highsmith probably donated the images not knowing much about the idea of Public Domain for example saying they were meant to be royalty free.

    I hope her lawsuit gets thrown out even though I totally understand her anger towards the cease and desist letter. That is actually ridiculous they did that.

    reply to this | link to this | view in chronology ]

    • identicon
      Beeswax 5000, 3 Aug 2016 @ 1:41am

      Re: RF Images

      people in the photos zas zip to do with copyright. You can use all the photos royalty free.

      That doesn't mean you can use someone's likeness for trade or advertising purposes. All the 50 states would have their own state law prohibition on that. You would need a release. Whether or not you have to pay is up to the person whose image you are intending to use.

      reply to this | link to this | view in chronology ]

  • identicon
    FactChecker SAM, 3 Aug 2016 @ 1:33am

    Not a clear cut case at all

    "As Highsmith noted, she retained the copyright to her images, but rather did a deal with the Library of Congress to make the works available royalty free."

    Not so fast.

    What a plantiff "notes" as you call it in a complaint, aka a factual ALLEGATION, is not a fact until the trier of fact decides it is.

    Exhibit B to her Complaint states, among other things, that she "dedicate to the public all rights, INCLUDING COPYRIGHTS (emphasis added) throughout the world, that I possess in this collection."

    The Copyright Office at the Rights page concerning her photos says "Highsmiths photographs are in the public domain."

    If she was convinced she retained copyright why no allegation of infringement ? Only the DMCA claims ? Inquiring minds want to know.

    reply to this | link to this | view in chronology ]

    • icon
      Anarres (profile), 7 Aug 2016 @ 8:33am

      Re: Not a clear cut case at all

      There are allegations of infringement too, just not as basis for damages. There's another reason for that: the photos were probably not registered before infringement was discovered, so she wouldn't have the right to ask for statutory damages.

      I agree there will be problems with interpretation of that document. The thing with it is that it also lists restrictions as it continues. Those restrictions don't seem possible if the intention was to put the images into the public domain properly. So I don't know; a judge might find that the intention was to give a broad license to them.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Aug 2016 @ 5:26am

    Good, Getty paid bribes to congress for statutory damages, now they have to swallow their own medicine: 1 billion $$$

    reply to this | link to this | view in chronology ]


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